NOTICE: This opinion is subject to formal revision
before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive
Secretary, National Labor Relations Board,
Local 155, International
Union, United Automobile, Aerospace and Agricultural Implement Workers of
August 26, 2008
DECISION AND ORDER
By
Chairman Schaumber and Member Liebman
On
April 24, 2008, Administrative Law Judge John H. West issued the attached
decision. The General Counsel filed
exceptions and a supporting brief.[1]
The National Labor Relations Board has considered the
decision and the record in light of the exceptions and brief and has decided to
affirm the judge’s rulings, findings, and conclusions and to adopt the recommended
Order as modified.[2]
ORDER
The National Labor Relations Board
adopts the recommended Order of the administrative law judge as modified below
and orders that the Respondents, Local 155, International Union, United Automobile,
Aerospace and Agricultural Implement Workers of America (UAW), AFL–CIO, Warren,
Michigan, and International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America (UAW), AFL–CIO, Detroit, Michigan,
their officers, agents, and representatives, shall take the action set forth in
the Order as modified.
1.
Substitute the following for paragraph 1(a).
“(a) Failing and refusing to execute
the July 31, 2007 written collective-bargaining agreement ratified by a
majority of the members of the bargaining unit on August 1, 2007. The bargaining unit is:
All full-time and regular part-time
production and maintenance employees, including materials coordinators,
manufacturing technicians, repair technicians, QA inspectors, QA gauge technicians,
truck drivers, tool crib attendants, die assemblers, tool polishers, toolmakers,
machine build workers, cutter grinders, maintenance technicians, oilers,
prototype, machine techs, and prototype welders employed by the Employer at its
facility located 28201 Van Dyke, Warren, Michigan, and including temp-to-hire
employees employed in the above classifications jointly by the employer and various
employment agencies; but excluding office clerical employees, confidential
employees, professional employees, and guards and supervisors as defined in the
Act.”
2. Substitute
the attached notice for that of the administrative law judge.
Dated,
______________________________________
Peter C. Schaumber,
Chairman
______________________________________
Wilma B. Liebman, Member
(seal) National Labor Relations Board
APPENDIX
Notice To Employees and Members
Posted by Order of the
National Labor Relations Board
An
Agency of the
The
National Labor Relations Board has found that we violated Federal labor law and
has ordered us to post and obey this notice.
federal law gives you
the right to
Form,
join, or assist a union
Choose
representatives to bargain on your behalf with your employer
Act
together with other employees for your benefit and protection
Choose
not to engage in any of these protected activities.
We will not fail and refuse to
execute the July 31, 2007 written collective-bargaining agreement ratified by a
majority of the members of the bargaining unit on August 1, 2007. The bargaining unit is:
All full-time and regular part-time
production and maintenance employees, including materials coordinators,
manufacturing technicians, repair technicians, QA inspectors, QA gauge technicians,
truck drivers, tool crib attendants, die assemblers, tool polishers, toolmakers,
machine build workers, cutter grinders, maintenance technicians, oilers,
prototype, machine techs, and prototype welders employed by us at our facility
located 28201 Van Dyke, Warren, Michigan, and including temp-to-hire employees
employed in the above classifications jointly by the employer and various employment
agencies; but excluding office clerical employees, confidential employees,
professional employees, and guards and supervisors as defined in the Act.
We will not in any like or related
manner restrain or coerce you in the exercise of the rights guaranteed you by
Section 7 of the Act.
We will immediately execute the
July 31, 2007 written collective-bargaining agreement ratified by a majority of
the members of the bargaining unit on August 1, 2007.
We will give retroactive effect
to the provisions of the July 31, 2007 written collective-bargaining agreement
ratified by a majority of the members of the bargaining unit on August 1, 2007.
Local 155,
International Union, United Automobile, Aerospace and Agricultural Implement
Workers of
Kelly A. Temple, Esq., for the General Counsel.
Stephen A. Yokich, Esq. (Cornfield &
Feldman), of
Martin J. Galvin, Esq. (Dykema Gossett,
PLLC), of
DECISION
Statement of the Case
John H. West, Administrative Law Judge.
This case was tried in
On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed on April 8, 2008,2 by counsel for the General Counsel, the Charging Party, and Respondents, I make the following
Findings of Fact
i.
jurisdiction
The Charging Party is
a corporation with a place of business in
ii. alleged unfair labor practices
Counsel for the General Counsel and the Respondents stipulated that Greg Bauer is an agent of the International Union; that William Verdier, who is the grievance and bargaining chairman of the bargaining unit in question, is an agent of the Local with respect to the involved bargaining unit and the Employer for purposes of this case; that Clarence Presley, who is president of Local 155, is an agent of the Local Union; that John Cunningham, who is an International representative who was assigned to the involved bargaining unit since about November 2007, and who replaced Bauer, is an agent of the International; and that the Local Union has the authority to act on behalf of the International with respect to grievances at steps one and two of the grievance process.
Laura Hudson, who is the Charging Party’s director of human resources, testified that it is her understanding that there is a current contract between the Employer, the International Union, and Local 155; that there has been a collective-bargaining relationship between the UAW and the Employer since 2004; that the first contract (GC Exh. 2) was effective from 2004 to 2007; and that she took part in negotiating both contracts with Respondents.
On cross-examination,
Hudson testified that
during the contract negotiations in June and July 2007, the Company was
represented by her, John Delokla, who is the director of accounting and financing,
and Tim Brownfield, who is the director of operations; that the Union was
represented by Bauer, Verdier, and the members of the bargaining committee,
namely; James Thompson, Ron Burton, Dan Goodin, and Tracy Wright; that while
she prepared the Company’s proposals and the tentative agreement, the company
representatives worked as a team; that she believed that Bauer was the
spokesperson for the Union during negotiations because he gave the opening talk
before negotiations began and he laid out some of the preferred ground rules
such as not discussing what occurred in negotiations; that Verdier presented
most of the Union’s proposals; that throughout the process of negotiations
changes were made to the existing contract, all of the pages with the changes
were initialed, and a tentative agreement (GC Exh. 3) was reached on July 31;
that Bauer and the above-described members
of the bargaining committee signed or initialed the tentative agreement on July
30 or 31 on page 36 thereof, which page was copied from the original collective-bargaining
agreement; that General Counsel’s Exhibit 3 by itself is not the whole contract
since it only includes pages of the former contract on which changes were made;
that she was never advised by the involved International or Local that the
bargaining committee or the Local were not authorized to sign the 2004 or the
2007 collective-bargaining agreement; and that the bargaining committee members
signed the 2004 contract.
On cross-examination, Hudson testified that during
negotiations Bauer told her that he needed to sell this contract to his membership;
that she knew that a vote needed to occur; that she knew in 2007, that the
membership had to vote for there to be a deal; and that the bargaining
committee wanted the first lump-sum payment called for in the agreement sooner rather
than later.
Bauer testified that at the time of the trial
herein he had been an International Representative for “[g]oing on two years”
(Tr. 97); that he services over a dozen contracts, negotiating collective-bargaining
agreements, and participating in the third step of the grievance procedure and
arbitration; that the members of the bargaining committee for the Charging
Party were elected by the members of Local 155 who work for the Charging Party;
that the committee met with members to find out what the members wanted and
they passed this information on to him; that in negotiations he was the lead, a
facilitator who was taking instructions from the committee and the membership regarding
what they wanted; that article 19 of the UAW constitution requires membership
ratification of tentative agreements; that the constitution contains an ethical
practices code which is binding on members and UAW officers; that under the
constitution if a Local or an International officer makes a decision that a
member disagrees with, that member can appeal to the International President’s
Office and then to the public review board; that Local 155, which is called the
independent parts sector, is an amalgamated local which has members from
different corporations; that Local 155 does not get involved in the grievance
procedure, it does not “get involved in anything” (Tr. 102, 103); that he, the
unit, and the bargaining committee have sole discretion; that Region 1 of the
International, and not Local 155, services the bargaining unit and the
collective-bargaining agreement of the Charging Party; and that during
negotiations he told Hudson that they were in a different situation than
management because while the management representatives had to sell the
agreement to their superiors, the union representatives had to sell the agreement
to the a large contingency out in the
plant, their membership, and that the union representatives wanted an
attractive deal because the membership was going to vote, the membership
ultimately decides.
According to the testimony of Hudson, after a
tentative agreement was reached on July 31, midway through the day, the bargaining
committee members were excused for the balance of the day to prepare for and
the following day to be a part of the ratification vote on August 1 at Local
155.
Hudson testified that she excused members of the bargaining committee for August 1, at the behest of Bauer who told her the ratification vote was going to be held that day; that on the evening of August 1, she telephoned Bauer on his cell phone about 7 p.m. as she was getting ready to leave work; that the results were not known at the time and she asked Bauer to call her; that at about 7:45 p.m. Bauer telephoned her on her cell phone “and said that the contract had been ratified . . . it was very close and could the bargaining committee [members] be excused from work the following day because they had had a rough day.” (Tr. 25); that with respect to whether Bauer ever indicated to her that there was any problem with the ratification vote, Bauer said only that the vote was close but that it was ratified and she congratulated him; that Bauer did not say anything else and he did not indicate to her that the vote was conditioned upon anything; and that there was nothing in the previous contract that stated that the contract had to be ratified as a condition of the contract becoming valid.
On cross-examination, Hudson testified that on August 1 she left work close to 7 p.m.; that she “called him [Bauer] driving home” (Tr. 69); that Bauer called her back afterwards; that the first time she knew the contract was ratified that night was when Bauer talked to her; that she did not go back to the plant that night; and that on August 1 it was reported to her that the vote was in favor of the contract.
Bauer testified that the ratification vote was held on August 1 at Local 155; that he had no involvement with setting up the voting process; that the election committee were volunteers who worked for the Charging Party and were members of Local 155; that the voting started at 10:30 a.m.; that the Charging Party has staggered shifts so they were coming in every couple of hours in groups of 15 to 25 members; and that about 5 p.m. the following happened:
We have an anti-union segment in that shop who wears their anti-union shirts that they’ve had ever since the facility was organized and led by a gentleman named Tony Bowman. He walked in with his anti-union brown shirt, vote no UAW, and when that group of approximately five came in to vote, there is part of the bargaining committee a skilled trades rep named Tracy Wright, and [she] inadvertently said that, well, we’re all done, all the people voted now, we’re done. Well, at that, because I was not aware of how long we had the hall and how long this whole process went, I went by what the skilled trade rep had said. I looked at the election committee and said, okay, do what you have to do, and gave orders to the committee and myself to remove ourself [sic] from that ballot box, and we went out by the hall. The ballots were then counted. [Tr. 106.]
Bauer further testified that the ballots were tallied with 140 votes against the contract and 130 for the contract; that one of the stewards, Ron Burton, then walked into the room, asked what was going on, and said that he had about 20 second-shift employee/members who are going to come to Local 155 to vote for the contract and they should have a chance to vote; that he told the election committee to write a statement of what just occurred, to put the ballots back in the box, and lock the box; that he notified a Local officer, Vice President Bob Hector, who was on duty that night about what occurred; that 18 more of Charging Party’s employees came to Local 155 at about 6:30 p.m. and voted; that at 7 p.m. the balloting was closed and the ballots were counted; that this time the outcome was 147 in favor of the agreement to 141 to turn it down; and that he telephoned Hudson after the second tally telling her:
[T]here was good news and bad news, and that the good news was that it passed, but the bad news is there was a mix up in counting the ballots, and she was more than familiar with Tony Bowman and his antics, and I said, in front of Tony Bowman of all people this had to occur, and that he left the place hooting and hollering and he was going to go to the plant and let them know that it didn’t pass, and now we’re saying it is, so expect trouble; that there for sure is going to be trouble, and I wouldn’t doubt if he has an appeal because I’m familiar with the process. And she stated, quote, ‘That sounds like [a] union problem.’ And I said, no, that’s our problem. [Tr. 109.]
Bauer further testified that during this conversation he told Hudson that “it would be in my humble opinion [there] was going to be an appeal, so therefore we better sit tight because I know it’s going to happen” (id.); that he wanted the Company to sit tight because there was money involved, and what he was concerned about was that the Company would go ahead and issue these lump sums and then through this process bargaining unit members would have to pay it back; and that he did not think that the bargaining unit members would be able to do that and the Company would take it out of their wages.
On cross-examination,
Bauer testified that on August 1 he told
On August 2, according to the testimony of Hudson, she met with the Company’s payroll department because one of the things that was agreed to in a new provision of the contract was that employees would receive a lump-sum payment or either $1000 or $500 (based on the date of hire) the following week. Hudson testified that the Employer made the lump-sum payment; that within a week following the August 1 ratification vote she had a discussion with Bauer to confirm how the deductions from the lump-sum payments would be handled; and that on August 9 or 16, she telephoned Bauer and they agreed that, with respect to employees who were on approved medical leave or a leave of absence of some kind, their lump-sum payment checks would be held until they returned to work.
Hudson testified that other changes the Company started working on were (a) changing its 401(k) plan to improve eligibility, (b) changing the way holidays were paid, (c) changing the attendance program so that employees with good attendance records could call in and use a vacation day or an earned personal day without scheduling it in advance,3 (d) started working, as agreed, with an insurance agent to identify a cost effective plan to allow additional short-term disability options for employees and arrange employee meetings to disseminate this information, (e) changed the medical coverage so that coverage for a brand name drug increased from $20 to $50, (f) changed the disciplinary process in August 2007, by adding a provision that the discipline had to occur within 7 days following the event or the Company could not issue a writeup to the employee,4 (g) changed the procedure with respect to pay shortages so that if the employee did not receive the moneys that he or she should have and if it was a shortage of 4 hours or more, the Company would manually cut a check for the employee, (h) changed the Company option of temporarily laying off employees from 6 to 4 weeks, (i) changed Company policy so that a person would have to have not worked for 24 months before they would be separated from the Company, (j) changed the rule by expanding the area within the organization that an employee could shift bump by exercising seniority, (k) changed the rule regarding job postings so that the employee awarded a job posting is paid the rate of the new position from the first day they go into that job, (l) changed Company policy so that the bargaining/grievance committee was part of reviewing overtime postings with the understanding that they would communicate with management if there were any issues, (m) changed the holiday program so that the holiday days were deferred until the end of the year, they were treated as a bonus, and employees were allowed to collect a full week of unemployment, (n) changed the policy regarding how employees are paid if they are injured at work to ensure that the employees are getting a full 8 hours of pay and the day after a work-related injury was addressed, (o) provided a variety of buy-up options that employees as of October 2007 could purchase and have higher short-term disability weekly benefits at their cost, and (p) changed the eligibility for dental insurance so that employees had to wait 2 years for that benefit (previously, they had to wait 1 year for this benefit).
On further direct by counsel for the Charging Party, Hudson testified that as set forth in General Counsel’s Exhibit 3, the tentative agreement, the parties negotiated for lump sum increases to be implemented on August 9 and the employees would have received the increase the following Thursday, August 16; that no one from the UAW, either Local 155 or the International, contacted her and advised her not to pay the lump sums; that the attendance program in the above-described August 27 posting signed by Verdier (GC Exh. 6), was negotiated during negotiations in June and July 2007; that Verdier did not say that he could not sign the document that was posted; that no one from the UAW, either the involved Local or the International, contacted her to tell her that the change in the attendance program was not valid and could not be implemented; and that there were no grievances filed about the change in the attendance program.
Within a couple of days after the August 1 ratification, according to the testimony of Hudson, during a telephone conversation Bauer reminded her of her July 31 statement and subsequently she did in fact remove the writeups, one each from three of the bargaining committee members’ files.5
On cross-examination,
Respondent’s Exhibit 3 is the appeal, dated August 4, of the ratification vote which was sent to Ron Gettlefinger, the UAW President. There are three pages of signatures attached to it. Bauer, who was a “CC” on the appeal, testified that the 140 signatures are of members of the bargaining unit.
Bauer testified that between August 1 and the time that the checks for the lump-sum payments which were due in August (August 16) were actually cut he had a conversation with Hudson; that Verdier asked him to look into a concern with the lump-sum payments; that he telephoned Hudson and spoke with her about the lump-sum payments; that during this conversation
I said, Laura, our conversation about Tony Bowman has come to fruition; he has appealed it and he has gone to Ron Gettlefinger; he’s got 140 signatures, and it’s gone to my direct boss. So once I again I asked for everything to be put on hold, let’s see where this all goes. [Tr. 114, 115.]
On cross-examination, Bauer testified that he never told the bargaining unit members not to cash the lump-sum payment since he was not “entitled” (Tr. p. 118) to do that.
In late August 2007,
according to the testimony of
On further direct by
counsel for the Charging Party,
On cross-examination, Hudson testified that during a telephone conversation with Verdier he said it looked good and this occurred several weeks after she gave him the new contract; that there were some typing errors in the original final draft and there was a sentence that was missing in part of it; that consequently there was a later version than the aforementioned one that was given to Verdier; that Verdier was the one who brought to her attention an issue involving the missing sentence; and that Verdier first said that the draft given to him was alright, then an issue occurred relating to overtime, and Verdier, who was looking at the new language, noticed a sentence was missing, he pointed this out, the Company agreed, and the sentence was added.
On redirect, Hudson testified that after she gave Verdier the contract it was a couple of weeks, after the Labor Day holiday, that Verdier said that it looked okay; that subsequently there was a concern that the supervisors and managers were not posting overtime for the weekend in a timely manner, and Verdier was looking at the new contract and he noticed that a sentence was missing; that the Company reinforced the importance of posting overtime on the right day; and that she believed that Verdier noticed the missing sentence after he said everything looked okay.
Hudson testified that in late August 2007, she initiated a meeting with Verdier to ascertain whether the short-term disability buy-up option provided by the Company’s current provider, Hartford, would meet the requirements that the Company and the Union had agreed to during negotiations; that Verdier agreed that it sounded like a good program; that during the meeting with Verdier it was agreed that the Company would get all of the paperwork in order so that it could bring in the insurance agent and he could explain the buy-up option and the employees could enroll in the new buy-up option at the next employee meeting; and that the employee meeting occurred at the end of September 2007, and the coverage became effective October 1.
During the week of
September 17, according to her testimony,
Bauer testified that the Company and the Union attempted to set up a meeting to review a final tentative agreement; that during the summer there were availability questions, “so we never did get a firm date to do it” (Tr. 115); that during negotiations it was agreed before the agreement was to be signed, there would be a meeting between management and the Union with respect to coaching some supervisors and stewards about acting appropriately; and that they never had either meeting.
According to
Hudson testified that about 9 a.m. on September 27 Presley telephoned her and he told her that he had a big problem and he needed to come to the plant and talk with her as soon as possible; that Presley came to the plant within the hour; that Presley said (a) there were big problems in that a complaint had been filed with the “Labor Board” and with the UAW, (b) everything had been dumped in his lap, (c) he was doing what the assistant director told him, (d) he was going to need a whole lot of help because there were problems with the contract and impliedly there might have to be another vote, and (e) she could make copies of a UAW document, which appeared to be a complaint filed by one of the Charging Party’s employees with the UAW;7 that she told Presley that in her opinion they had a ratified contract, she was not aware of any complaints filed with the “Labor Board,” and if there was a complaint within the UAW, she could not help him with that; and that prior to this she had not heard that there was any trouble with the contract or the execution.
On further direct by
counsel for the Charging Party,
On cross-examination, Hudson testified that page 2 of General Counsel’s Exhibit 11, a copy of which was given to her for the first time on September 27, indicates that members from Local 155 on August 4, filed an appeal with the UAW’s president’s office about the August 1 ratification vote; that the first time that she heard that the Union was having issues with the August 2007 ratification was the telephone call on September 26 from Bauer canceling their meeting and a visit the next day from Presley; that prior to this she was not aware of any sort of issues with the ratification; and that she did not hear any discussions at the plant that there were any issues with the ratification vote from employees.
Bauer testified that as shown in General Counsel’s Exhibit 11, the UAW president’s office ruled that the ratification vote was overturned and there would be a revote because according to article 33 of the constitution the membership had a right to do that and it was determined “that it would be in [the] best interest to have a re-vote” (Tr. 116); that this decision was issued around September 26 or 27; that he was told about the decision before it was issued; that another ratification vote was held and it was a landslide in favor of turning down the contract;8 and that the Union never executed the contract because the Union’s membership dictates, and they did not want that agreement.
On cross-examination, Bauer testified that the Union’s constitution is not an agreement between the Company and the International or the Local but rather it is the Union’s internal document; that he was told about the decision of the president’s office a couple of days before it was issued; that he was told that he would not be handling the re-vote and Presley would be there from Local 155; that while there is no date in General Counsel’s Exhibit 11 showing when it was issued, he believed that it was sometime in October; that on page 3 of General Counsel’s Exhibit 11 it is indicated that the appeal was acknowledged by President Gettlefinger’s administrative assistant Dave Curdon via letter dated August 16; that as indicated above, the appeal was filed on August 4; that on page 2 of General Counsel’s Exhibit 11, under “FACTS,” it is indicated that “the CBA was announced as ratified and proper notice was forwarded to the Company”; that this refers to him “saying that the count was 147 [to] 141, we have a ratified, we did successfully ratify the agreement” (Tr. p. 134); and that proper notice refers to the fact that the outcome of the ratification vote was posted at Charging Party’s facility.
It is noted that, as here pertinent, the following appears on pages 3 and 4 of General Counsel’s Exhibit 11:
In a letter sent to the Local Union . . . , President Gettelfinger requested all relevant information concerning the appeal. In a letter to the President dated September 12, 2007 . . . the Local Union complied. Attached to the letter was the following statement from Region 1 Representative Greg Bauer (Exhibit E):
Exhibit E
At about 5:00
p.m. on August 1st, 2007, a group of approximately 25 members came into Local
155 to vote on a tentative agreement with the UAW and US Manufacturing. We (the bargaining committee) had the
election set up for the hours of 10:00 a.m. until 7:00 p.m.
After these
approximately 25 members voted, 3 to 5 of them were standing around and one of
the stewards stated ‘well that’s all of the members.’ Upon hearing this, the two volunteers from
the membership who were responsible for counting the ballots opened the ballot
box and began to count.
After a short
period of time, the volunteers announced that the count was 140 no votes to 130
yes votes. Upon hearing this the 3 to 5
members who were standing around began to cheer to the fact that the agreement
was turned down and left I presume to go the plant and spread the so-called
good news.
When I
returned from the lobby, I had asked what was going on and I was told the votes
were counted and the contract was turned down. I stated “Why did we have the Local union 7:00
p.m.? [sic] A Steward named Ron said ‘I
have members who don’t get their lunch until 6:00 [p.m.] and some who get
theirs at 6:30 p.m. and they didn’t get a chance to vote yet.
Upon hearing
this I told the volunteers to put the ballots back into the box, to lock the
ballot box and to sign their names to the fact of what just happened. At no time did I or any of the bargaining
committee come near the ballots of [Perhaps this is a typo and it should read
or.] the ballot box.
. . . .
According to her
testimony,
By letter dated
September 28 (GC Exh. 12),
This letter is
written to document our telephone conversation of today, and our meeting
yesterday.
U.S.
Manufacturing Corporation negotiated in good faith. We reached an agreement
with UAW Local 155. The Company was officially informed by Greg Bauer, UAW
Region 1 International Representative, that the contract was ratified on August
1, 2007.
It is the
position of U.S. Manufacturing that we have a valid collective bargaining
agreement with the UAW.
Please contact
me to reschedule a meeting to expedite the contract as soon as possible.
By letter dated
October 11 (GC Exh. 13), Presley advised
Please be advised that Tom Popa and Richard Burton will be needed out of the plant on Wednesday, Oct 17, 2007. They will be on official union business.
Hudson testified that since the two-named employees were not members of the bargaining/grievance committee, she telephoned Presley to ask him why these two individuals needed to be excused for union business and Presley told her that they would be observers during the vote; that she excused the time; and that before this she was not aware that the Union was holding another ratification vote.
By letter dated
October 30 (GC Exh. 14), Bauer advised
The Bargaining
Committee for UAW Local 155 of U.S. Manufacturing is prepared to meet with your
team and resume negotiations due to the fact that the contract was not ratified
in accordance with UAW procedures.
Please contact
us with dates for negotiating.
On cross-examination Bauer testified that between August 1 when he told Hudson that the contract was ratified and his above described October 30 letter to Hudson, he did not send Hudson any correspondence letting her know that there was any sort of problem with the ratification; that this was all done verbally; that there was nothing in writing; that he talked quite often with Hudson on the telephone; that between August 1 and September 27, he spoke with Hudson on the telephone four to six times; and that he thought that there were around six conversations.
By letter dated
November 1 (GC Exh. 15),
This letter is
written in response to your letter dated October 30, 2007.
On August 1,
2007 you informed us that we had a ratified contract.
As you may or
may not be aware, U.S. Manufacturing Corporation has filed an unfair labor
practice with the NLRB.
It is our
position that we have a contract.
General Counsel’s Exhibit 17 is a charge filed on November 6, by International Union UAW, and its Local 155 (the charge was signed by the same attorney who represents the Union at the trial herein) in Case 7–CA–50830 against U.S. Manufacturing Corporation alleging as follows:
In July 2007,
the Employer and the
Following the
rejection of the contract, the
By letter dated
December 5 (GC Exh. 18), the Regional Director for Region 7 of the Board advised
the Union that after an investigation of the
On January 16, 2008, a grievance (GC Exh. 16), was filed by Verdier which refers to “CONTRACT PROVISION Appendix A Lump Sum Payments $1,000.00.” It alleges that
Employees out of work
for medical short term disability, FMLA or any other approved or unapproved
absences were not paid lump sum payments as scheduled on 1/10/08. Company states there was a verbal agreement
during contract negotiations.
The “RECOMMENDED SETTLEMENT” portion of the grievance indicates “Pay-out Lump Sum payments due to any affected employees out of work on scheduled days noted in contract.” Hudson, who sponsored this exhibit, testified that at the time of the trial herein the Company was waiting for a decision on the part of the International to either withdraw the grievance, move it to arbitration, or request to discuss it further.10
On further direct by counsel for the Charging Party, Hudson testified that Verdier’s reference to “CONTRACT PROVISION Appendix A . . .” is a reference to the signed tentative agreement, the new contract which was received herein as General Counsel’s Exhibit 3, and which references lump sum payments.
On cross-examination, Hudson testified that the grievance memorialized by General Counsel’s Exhibit 16, as described above, had a third-step meeting in the beginning of February 2008; that this grievance and the other grievance described above (GC Exh. 5), are the only two grievances that have been filed under the new contract; and that the Union and the Company have not gone to arbitration since August 1.
By letter dated January 31, 2008 (GC Exh. 19), the Office of Appeals of the Office of the General Counsel of the Board in Washington, D.C. advised the Union regarding its appeal in Case 7–CA–50830 as follows:
Your appeal
from the Regional Director’s refusal to issue complaint has been carefully considered.
The appeal is
denied substantially for the reasons set forth in the summary report attached
to the Regional Director’s letter of December 5, 2007. As the Regional Director noted, when the
Union’s agent advised the Employer the collective bargaining agreement was
ratified by the membership that agreement took effect regardless of any
irregularities in the election. See Teamsters Local 662 (W. S. Darley & Co.),
339 NLRB 893, 899 (2003), and Teamsters
Local 589 (
Analysis
As noted above, the complaint alleges that Respondents have been failing and refusing to bargain collectively in good faith with the Charging Party, in violation of Section 8(b)(3) of the Act, by since about September 28, failing and refusing to execute a collective-bargaining agreement, which agreement was reached on July 31, subject to the condition requiring unit ratification of the tentative agreement, which tentative agreement was ratified on or about August 1, and notification of the ratification was given to the Charging Party by the Respondents, and which agreement was supposed to be executed on September 28.
Also, as noted above, in its answer to the complaint Respondent International avers that when its agent informed Charging Party of the ratification vote he specifically advised the Charging Party that issues had arisen regarding the ratification vote and the Charging Party should not put the contract into effect because there would likely be an appeal of any decision regarding the ratification vote.
Here what was said by
the Union to the Company on August 1 regarding the August 1 ratification vote
and the action of the
As was pointed out by
Judge Meyerson in Teamsters Local 589 (
[G]enerally speaking,
a union can condition agreement on the terms of a contract on ratification by
the bargaining unit employees, as long as the employer is aware before or
during negotiations of such a condition precedent, and has expressly agreed to
it. Observer-Dispatch,
334 NLRB 1067, 1072 (2001). Whether
actual ratification occurs, or whether the ratification process is fair and
proper, is not relevant to the question of the existence of the agreement. What is relevant is what the union tells the
employer about ratification. [Footnote
omitted.] In Teamsters Local 662 (W. S. Darley & Co.), 339 NLRB 893, 899
(2003), the Board held that “whenever a labor organization gives notice to an
employer that their agreement has been ratified by the employees, that notice
signifies acceptance of the rights and duties arising under the agreement and,
in turn, the statutory obligation arises to execute a written contract
embodying that agreement.” Not only are
employers not permitted to challenge the results or procedures of those elections,
but the Board has concluded that “[t]he same considerations warrant the
conclusion that once they give notice to employers that ratification has
occurred, labor organizations may not, under the Act, brandish deficiencies in
ratification elections as escape mechanisms for refusals to execute contracts
embodying their agreements.”
. . . .
[In Teamsters Local 589 (
Here the Company was
aware that the
When Bauer was shown
General Counsel’s Exhibit 11 by counsel for the
At about 5:00
p.m. on August 1st, 2007, a group of approximately 25 members came into Local
155 to vote on a tentative agreement with the UAW and US Manufacturing. We (the bargaining committee) had the
election set up for the hours of 10:00 a.m. until 7:00 p.m.
After these
approximately 25 members voted 3 to 5 of them were standing around and one of
the stewards stated ‘well that’s all of the members.’ Upon hearing this, the two volunteers from
the membership who were responsible for counting the ballots opened the ballot
box and began to count.
After a short
period of time, the volunteers announced that the count was 140 no votes to 130
yes votes. Upon hearing this, the 3 to 5
members who were standing around began to cheer to the fact that the agreement
was turned down and left I presume to go the plant and spread the so-called
good news.
When I
returned from the lobby, I had asked what was going on and I was told the votes
were counted and the contract was turned down.
I stated “Why did we have the Local union 7:00 p.m.? [sic] A Steward named Ron said ‘ I have members who
don’t get their lunch until 6:00 [p.m.] and some who get theirs at 6:30 p.m.
and they didn’t get a chance to vote yet.
Upon hearing
this I told the volunteers to put the ballots back into the box, to lock the
ballot box and to sign their names to the fact of what just happened. At no time did I or any of the bargaining
committee come near the ballots of [perhaps this is a typo and it should read
or] the ballot box.
Compare this with the following of Bauer’s above-described testimony at the trial herein:
We have an anti-union segment in that shop who wears their anti-union shirts that they’ve had ever since the facility was organized and led by a gentleman named Tony Bowman. He walked in with his anti-union brown shirt, vote no UAW, and when that group of approximately five came in to vote, there is part of the bargaining committee a skilled trades rep named Tracy Wright, and [she] inadvertently said that, well, we’re all done, all the people voted now, we’re done. Well, at that, because I was not aware of how long we had the hall and how long this whole process went, I went by what the skilled trade rep had said. I looked at the election committee and said, okay, do what you have to do, and gave orders to the committee and myself to remove ourself [sic] from that ballot box, and we went out by the hall. The ballots were then counted. [Tr. p. 106.]
In his written statement Bauer, who according to his written statement asked those who prematurely opened the ballot box “[w]hy did we have the Local union [until] 7:00 p.m.,” appears to place the blame for the premature ballot count on the volunteer election committee. Indeed at page 7 in the DISCUSSION portion of the Decision of the Union International President’s Office, it is indicated as follows:
The voluntary Ratification Vote Committee was inexperienced at performing the task of conducting a ratification vote. Although their efforts are surely appreciated and their willingness to help [is] commendable, they made a severe mistake when they opened the ballot box prior to the posted closing of the polls. [Emphasis added.]
It appears from this quoted portion of the Decision of the Union International President’s Office that the “severe mistake” was committed by the voluntary ratification vote committee. Yet when he subsequently testified under oath at the trial herein Bauer testified that
[A] skilled trades rep named Tracy Wright, and [she] inadvertently said that, well, we’re all done, all the people voted now, we’re done. Well, at that, because I was not aware of how long we had the hall and how long this whole process went, I went by what the skilled trade rep had said. I looked at the election committee and said, okay, do what you have to do, and gave orders to the committee and myself to remove ourself [sic] from that ballot box, and we went out by the hall. The ballots were then counted. [Tr. p. 106 with emphasis added.]
In other words, when he testified at the trial herein Bauer, who was overseeing the ratification vote, admitted that he, in effect, told the volunteer election committee to open (prematurely) the ballot box and one of the reasons he did it was because he was not aware of how long they had the hall. As noted above, in his written statement Bauer asked those who prematurely opened the ballot box “[w]hy did we have the Local union [until] 7:00 p.m.,” Bauer did not make any attempt to clear up these apparent contradictions. It is noted that Bauer was not placed in charge of the second ratification vote. Rather, Presley was placed in charge of that vote.
As noted above, on
cross-examination, Bauer testified that on page 2 of General Counsel’s Exhibit
11, which is the decision of the Office of the Union’s International President
on the appeal of the August 1 ratification, under “FACTS,” it is indicated that “the CBA was announced as ratified and
proper notice was forwarded to the Company”; that this refers to him “saying
that the count was 147 [to] 141, we have a ratified, we did successfully ratify
the agreement” (Tr. p. 134); and that proper notice refers to the fact that the
outcome of the ratification vote was posted at the Charging Party’s facility. Contrary to the Union’s argument on brief, the
There are reasons, in
addition to Bauer contradicting himself—without explanation, why I find that
Bauer is not a credible witness. First,
Bauer testified that on August 1 that he told Hudson “that it would be in my
humble opinion [there] was going to be an appeal, so therefore we better sit
tight because I know it’s going to happen.” (Tr. p. 109.)
Second, Bauer
testified that the reason that he wanted
Third, Bauer admits
that during the summer of 2007 the Company and the
Fourth, Bauer did not
specifically deny
Fifth, with respect to
timing, Bauer, as noted above, gave a written statement to the Office of the
International president regarding what occurred with respect to the ratification
vote on August 1. See General Counsel’s
Exhibit 11. Also, as noted above, on
page 2 of the decision of the Office of the International president, General
Counsel’s Exhibit 11, under “FACTS,” it is indicated that “the
CBA was announced as ratified and proper notice was forwarded to the Company.
Bauer testified that this refers to him “saying that the count was 147 [to]
141, we have a ratified, we did successfully ratify the agreement” (Tr. p. 134);
and that proper notice refers to the fact that the outcome of the ratification
vote was posted at Charging Party’s facility. As noted, it has not been shown that Bauer
attempted in any way to have the decision of the office of the president
regarding whether proper notice was given to the Company modified to show that,
as he asserts, he qualified his notification to the Company by explaining to
the Company that there was a mix up in counting the ballots, he did not doubt
that there was going to be an appeal, and that the Company should “sit tight.” It appears that Bauer’s assertion that he in
any way qualified his notice to the Company regarding the August 1 ratification
vote first surfaced after December 5 when the Regional Director of Region 7 of
the Board advised the Union, after an investigation of the Union’s charge in
Case 7–CA–50830, that the Union’s charge was being dismissed because an
International Representative (Bauer), who is a duly authorized agent of the
Union, notified the Employer that the agreement was ratified and “[w]hen a
labor organization gives notice to an employer that an agreement has been
ratified it signifies acceptance of the rights and duties arising under the
agreement, and, in turn, a statutory obligation arises to execute a written contract
embodying that agreement, Teamsters Local
662 (W. S. Darley & Co.), 339 NLRB 893, 899 (2003).” (See GC Exh. 18.) The Union did not allege in its November 6
charge that there was no ratification because Bauer allegedly told
Other things
demonstrate that the Union did not notify the Company to “sit tight” (Tr. p.
109) or request of
I do not find Bauer to
be a credible witness. I do find
Conclusions of Law
By since about September 28 failing and refusing to execute the July 31 collective-bargaining agreement which was ratified by a majority of the members of the involved bargaining unit on August 1, the Respondents have engaged in unfair labor practices affecting commerce within the meaning of Section 8(b)(3) and Section 2(6) and (7) of the Act.
Remedy
Having found that the Respondents have engaged in certain unfair labor practices, I find that they must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act.
Respondents shall forthwith execute the collective-bargaining agreement reached with the Employer on July 31, 2007, and ratified by a majority of the members of the involved bargaining unit on August 1, 2007; and shall give retroactive effect to the provisions of thecollective-bargaining agreement from August 1, 2007.
On these findings of fact and conclusions of law and on the entire record, I issue the following recommended15
ORDER
The Respondents, Local 155, International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America (UAW), AFL–CIO,
1. Cease and desist from
(a) Failing and refusing to execute the above-described July 31, 2007 written collective-bargaining agreement which was ratified by a majority of the members of the involved bargaining unit on August 1, 2007.
(b) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Execute forthwith the written collective-bargaining agreement embodying the final and binding agreement reached with the Employer on July 31, 2007, and ratified by a majority of the members of the involved bargaining unit on August 1, 2007.
(b) Give retroactive effect to the provisions of the collective bargaining agreement reached with the Employer on July 31, 2007, and ratified by a majority of the members of the involved bargaining unit on August 1, 2007.
(c) Within 14 days
after service by the Region, post at its Local 155 union office in